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United States v. Mills

United States District Court, E.D. Michigan, Southern Division

April 30, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
EDWIN MILLS, et al., Defendants.

          OPINION & ORDER DENYING DEFENDANT CARLO WILSON'S MOTIONS TO DISMISS (DKTS. 626, 627, 629, 630, 632, 633, 634, 635, 636)

          MARK A. GOLDSMITH, UNITED STATES DISTRICT JUDGE

         This criminal case involves multiple defendants, all of whom have been charged with violating the Racketeering Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. Defendant Carlo Wilson has filed nine motions to dismiss (Dkts. 626, 627, 629, 630, 632, 633, 634, 635, 636).[1] The Government has filed responses in opposition to the motions, some of which were consolidated (Dkts. 686, 689, 690, 694, 697, 698), to which Wilson replied (Dkts. 727, 728, 730, 731, 732, 733, 734).[2] For the reasons stated below, the Court denies the motions.

         I. BACKGROUND

         A federal grand jury returned a second superseding indictment on February 28, 2018, charging the eleven defendants in this case with various crimes, including violations of RICO. See generally 2d Superseding Indictment (Dkt. 292). That indictment claims that Defendants were members and associates of a criminal enterprise-the “6 Mile Chedda Grove” street gang in Detroit-one of whose purposes was to “preserv[e] and protect[] the power, territory, reputation, and profits of the enterprise through murder, robberies, intimidation, violence, and threats of violence.” Id. at 2, 6. The enterprise purportedly operated on the east side of Detroit within an area bordered roughly by East McNichols Road to the north, Kelly Road to the east, Houston-Whittier Street to the south, and Chalmers Street to the west. Id. at 2. The “Chedda Grove” part of the enterprise's name is partially derived from one of the main streets in this territory- Cedargrove Street. Id.

         The indictment further alleges that the enterprise's profits derived primarily from the sale and distribution of controlled substances, including crack cocaine, heroin, and morphine. Id. at 5. The sale and distribution alleged were not limited to Michigan; gang members and associates purportedly sold and distributed controlled substances in Ohio, Kentucky, Tennessee, Alabama, and West Virginia. Id.

         Eight of the eleven defendants have since pleaded guilty.[3] The three remaining defendants have been separated into two groups with separate trial dates. See 8/7/2018 Order (Dkt. 425). Group One is currently composed of one defendant, Robert Baytops, who is not subject to the death penalty upon conviction. His trial will be scheduled at a future date. See 3/26/2019 Order (Dkt. 846) (granting Defendant Donell Thompson's motion for severance). Group Two, composed of two defendants who are death-penalty eligible, has a trial date of April 21, 2020. See 8/31/2018 Order (Dkt. 475).

         Defendant Carlo Wilson belongs to Group Two and has been charged with one count of racketeering conspiracy in violation of 18 U.S.C. § 1962(d) (Count One); two counts of murder in aid of racketeering in violation of 18 U.S.C. § 1959(a)(1) (Count Eight involves victim A.T.; Count Ten involves victim S.H.); two counts of using and carrying a firearm during and in relation to a crime of violence causing death in violation of 18 U.S.C. §§ 924(c) and 924(j) (Count Nine involves victim A.T.; Count Eleven involves victim S.H.); two counts of assault with a dangerous weapon in aid of racketeering in violation of 18 U.S.C. § 1959(a)(3) (Count Twelve involves victim M.A.; Count Thirteen involves victim T.M.); and one count of using, carrying, and discharging a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c) (Count Fourteen, based on Counts Twelve and Thirteen). See generally 2d Superseding Indictment. On March 1, 2018, the Government filed its notice of intent to seek a sentence of death against Wilson (Dkt. 293).

         II. DISCUSSION

         Wilson has filed nine motions to dismiss, which the Court will address in what it believes to be the most logical order.

         A. Motion to Dismiss Counts Eight Through Fourteen Based on Facial and As-Applied Constitutional Challenges to VICAR (Dkt. 365)

         As part of the Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1976, Congress enacted the Violent Crimes in Aid of Racketeering Activity (“VICAR”) statute, 18 U.S.C. § 1959, [4] which, among other things, prohibits the commission of certain violent crimes “for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity.” 18 U.S.C. § 1959(a). An “enterprise” is defined under VICAR as an association “engaged in, or activities of which affect, interstate or foreign commerce, ” 18 U.S.C. § 1959(b)(2), while “racketeering activity” is defined the same as it is in RICO, compare 18 U.S.C. § 1959(b)(1) with 18 U.S.C. § 1961(1); see also United States v. Mapp, 170 F.3d 328, 335 (2d Cir. 1999). “Congress enacted VICAR to complement RICO, and it intended VICAR, like RICO, ‘to be liberally construed to effectuate its remedial purposes.'” United States v. Banks, 514 F.3d 959, 967 (9th Cir. 2008) (quoting United States v. Concepcion, 983 F.2d 369, 380-381 (2d Cir. 1992)).

         Wilson first argues that Counts Eight through Fourteen of the second superseding indictment must be dismissed because VICAR is facially unconstitutional. See generally Def. Wilson Mot. at 4-9 (Dkt. 635). Relying principally on United States v. Morrison, 529 U.S. 598 (2000), and United States v. Lopez, 514 U.S. 549 (1995), Wilson contends that Congress exceeded its authority under the Commerce Clause because VICAR criminalizes intrastate activity, including murder, even when the activity itself is noneconomic and has no impact or bearing on interstate commerce. Id. at 8. Rather, “[i]t is only the group whom the murder is meant to impress that must have some effect on interstate commerce, and this effect may be wholly unrelated to the murder or any other racketeering activity.” Id. Although VICAR's definition of enterprise requires a nexus between a defendant's crime and interstate commerce, Wilson claims that this connection is “too attenuated” and “fails to limit VICAR's reach to only those violent acts that affect interstate commerce.” Id. The Court disagrees.

         Congress has the constitutional authority to “regulate Commerce . . . among the several States, ” U.S. Const., art. I, § 8, cl. 3, which includes regulating or prohibiting “activities that substantially affect interstate commerce, ” even if the activity is purely local. Lopez, 514 U.S. at 558-559. When assessing the scope of Congress's authority under the Commerce Clause, courts must determine whether there is a “rational basis” to conclude that the prohibited activities, “taken in the aggregate, substantially affect interstate commerce.” Gonzales v. Raich, 545 U.S. 1, 22 (2005); see also Taylor v. United States, 136 S.Ct. 2074 (2016) (reaffirming applicability of the Raich substantial-effects test). Insofar as it concerns VICAR in particular, a court must decide “whether Congress could rationally have concluded that intrastate acts of violence, such as murder, committed for the purpose of maintaining or increasing one's status in an interstate racketeering enterprise, would substantially affect the interstate activities of that enterprise.” United States v. Umana, 750 F.3d 320, 336 (4th Cir. 2014). For Wilson to succeed on his facial challenge, he must show that “no set of circumstances exists under which [VICAR] would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987) (“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully.”).

         Like the Fourth Circuit in Umana, this Court finds that “Congress could rationally have concluded that proscribing reputation-enhancing violence committed by members of a criminal enterprise would disrupt the interstate commerce that the enterprise itself engages in.” Umana, 750 F.3d at 337; see also United States v. Crenshaw, 359 F.3d 977, 986 (8th Cir. 2004) (“The regulation of violent acts committed as an aspect of membership in RICO enterprises therefore represents one method for Congress to exercise its power under the Commerce Clause to regulate the enterprises themselves.”). It is entirely reasonable to believe that members of a street gang, like 6 Mile Chedda Grove, would commit certain violent crimes, like murder and assault with a dangerous weapon, to maintain or enhance their status and reputation in the gang. Although VICAR does not require that these violent crimes themselves have any connection to interstate commerce, the violent acts must have been committed for the purpose of establishing, maintaining, or increasing a position within the enterprise. These violent acts could, in turn, enhance the power and reach of the racketeering enterprise itself. Umana, 750 F.3d at 337. Indeed, this is precisely what the Government has alleged in the second superseding indictment. See 2d Superseding Indictment at 28-33 (Mills and Wilson committed murder in aid of racketeering and assault with a dangerous weapon in aid of racketeering for the purpose of maintaining and increasing position in 6 Mile Chedda Grove); id. at 3 (members gain position, status, and respect by engaging in criminal activities including murder); id. at 5 (6 Mile Chedda Grove earns money predominately through narcotics trafficking in Michigan, Ohio, Kentucky, Tennessee, Alabama, and West Virginia); id. at 6 (6 Mile Chedda Grove preserves and protects its power, territory, reputation, and profits through violence); id. at 7 (members promote, support, and enhance the enterprise through murder, robberies, and narcotics distribution); id. at 8 (members protect and expand 6 Mile Chedda Grove's criminal activities by committing, conspiring, attempting, and threatening to commit acts of violence). Wilson does not attempt to demonstrate that there are no set of circumstances under which VICAR would be valid.

         Moreover, numerous courts have held that the jurisdictional element in VICAR that limits its reach to activities connected with enterprises “engaged in” or whose activities “affect” interstate commerce further justifies the constitutionality of VICAR under the Commerce Clause. See, e.g., Umana, 750 F.3d at 337; United States v. Marino, 277 F.3d 11, 35 (1st Cir. 2002) (unlike Lopez and Morrison, VICAR has a jurisdictional element and, therefore, only requires the Government to establish “a connection between the § 1959 act of violence and a RICO enterprise which has a de minimus interstate commerce connection”); United States v. Riddle, 249 F.3d 529, 537 (6th Cir. 2001) (distinguishing Lopez because VICAR contains a jurisdictional element in its definition of enterprise, and holding that the connection between the act of violence and a RICO enterprise satisfies VICAR if the enterprise has a “de minimus interstate commerce connection”); United States v. Torres, 129 F.3d 710, 717 (2d Cir. 1997) (rejecting facial challenge and holding that VICAR “satisfies the substantial effect requirement” because it “incorporates a jurisdictional element requiring a nexus between the offense in question and interstate commerce”); see also Crenshaw, 359 F.3d at 985-986 (although the presence of a jurisdictional element does not per se demonstrate that “a statute meets the substantial effects test, ” the jurisdictional element in VICAR “further illustrates the connection between interstate commerce and the activity regulated by the statute”); accord United States v. Nascimento, 491 F.3d 25, 43 (1st Cir. 2007) (“The RICO statute by its terms is limited to racketeering enterprises that ‘affect . . . commerce,' and the VICAR statute is similarly circumscribed. This jurisdictional element ties the statutes directly to commerce in a more explicit way than the statutes at issue” in Lopez, Morrison, or Raich.). Accordingly, the Court concludes that Congress did not exceed its authority under the Commerce Clause in enacting VICAR and rejects Wilson's facial challenge.[5]

         Wilson also argues that Counts Eight through Fourteen must be dismissed because VICAR is unconstitutional when applied to the specific circumstances of this case. See generally Def. Wilson Mot. at 9-11. Relying solely on United States v. Garcia, 68 F.Supp.2d 802 (E.D. Mich. 1999), Wilson contends that applying VICAR would be unconstitutional because, even if the 6 Mile Chedda Grove street gang's activities have a de minimis effect on interstate commerce, the murder and assault charges against him “are purely local street crimes.” Def. Wilson Mot. to Dismiss at 10; see also id. at 11 (“The allegations, even if sustained, establish nothing more than local rival gangs killing each other over turf within a few square miles in Detroit. These are local crimes; the federal government has no authority to prosecute these local crimes.”). Again, this Court disagrees.

         To begin, Wilson's reliance on Garcia is misplaced. In that pre-Riddle case, the district court concluded that the VICAR count itself-murder in aid of racketeering-had no connection to interstate commerce, even though the court concluded that the Government had met its burden of establishing the RICO enterprise's interstate-commerce requirement. Garcia, 68 F.Supp. at 811-812. Although a de minimis impact on interstate commerce is sufficient to support a racketeering charge under RICO, the district court held that “a stronger and more substantial connection or impact on interstate commerce is required” for a murder-in-aid-of-racketeering charge under VICAR. Id. at 811.

         The Sixth Circuit has since clarified that, if the Government establishes a connection between the crime of violence under VICAR and a RICO enterprise, and the enterprise “has a de minimis interstate commerce connection, ” then VICAR's interstate-commerce requirement is satisfied. Riddle, 249 F.3d at 538 (adopting test of the Second and Fourth Circuits). Thus, the focus is on whether the enterprise, not the act of violence, had a sufficient connection to interstate commerce. The Sixth Circuit concluded in Riddle that the Government had carried its burden under VICAR because the defendant did not contest the connection between the murder and the enterprise, and because the enterprise sufficiently affected interstate commerce. Id.; cf. Waucaush v. United States, 380 F.3d 251, 255-256 (6th Cir. 2004) (unlike in Riddle, where a minimal connection to interstate commerce was sufficient because the enterprise engaged in economic activity, a minimal effect on commerce will not suffice if the enterprise itself did not engage in any sort of economic activity).

         Other courts, including this one, have routinely found Garcia unpersuasive for similar reasons. See, e.g., United States v. Norwood, No. 12-CR-20287, 2015 WL 2343970, at *9 (E.D. Mich. May 14, 2015) (finding Garcia unpersuasive based on Riddle and rejecting the defendant's argument that his VICAR conviction was unconstitutional as exceeding Congress's power under the Commerce Clause); Castro v. United States, 993 F.Supp.2d 332, 346 (E.D.N.Y. 2014) (“‘To the Court's knowledge, the holding of Garcia-which is intensely fact-specific-has not been adopted or affirmed by any other court [] since it was decided. The Court does not find Garcia to be persuasive.'” (quoting United States v. Boyle, No. S1 08 CR 534 (CM), 2009 WL 2032105, at *9 (S.D.N.Y. July 9, 2009))); United States v. Valenzuela, No. SACR 05-107, 2006 WL 8435121, at *2 (C.D. Cal. Dec. 20. 2006) (“[T]he Ninth Circuit has considered and rejected the district court's position in Garcia.”); Tse v. United States, 112 F.Supp.2d 189, 195 (D. Mass. 2000) (“Since the Garcia decision, however, no other court has followed it and the First Circuit Court of Appeals has specifically declined to do so by invoking the reasoning of [Torres], and rejecting a claim that 18 U.S.C. § 1959 is facially invalid.”), aff'd in part and vacated in part on other grounds, 290 F.3d 462 (1st Cir. 2002). It is fair to say that this portion of Garcia is a dead letter.

         Furthermore, Wilson's as-applied challenge is not so much constitutional as it is more a sufficiency challenge. See Riddle 249 F.3d at 536 (holding that “a claim of an insufficient connection to interstate commerce is a challenge to one of the elements of the government's case”); see also Crenshaw, 359 F.3d at 984 (recognizing that the defendants' argument that the “particular application of [VICAR] is unconstitutional because there was not proof of a sufficient connection between the murder and interstate commerce” went to “one of the elements in the government's case” (citing Riddle, 249 F.3d at 536)). Here, the Government has alleged the interstate economic activities of 6 Mile Chedda Grove in the second superseding indictment. See 2d Superseding Indictment at 2-8. Whether this evidence is sufficient to establish the necessary connection between the enterprise and interstate commerce is beyond the scope of this motion. See United States v. Landham, 251 F.3d 1072, 1080 (6th Cir. 2001) (“[C]ourts evaluating motions to dismiss do not evaluate the evidence upon which the indictment is based.”); see also United States v. Jackson, No. 16-cr-20188, 2016 WL 4205998, at *2 (E.D. Mich. Aug. 10, 2016) (recognizing that numerous courts have held that a pretrial motion to dismiss may not be based on a sufficiency-of-the-evidence argument). Accordingly, the Court rejects Wilson's as-applied challenge.

         This motion is denied.

         B. Motions to Dismiss Counts One, Eight, and Ten for Failure to State an Offense (Dkts. 629, 633) and for Lack of Specificity (Dkt. 634)[6]

         VICAR prohibits the commission of certain violent crimes “in violation of the laws of any State or the United States, ” including murder, “for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity.” 18 U.S.C. § 1959(a). Notably, VICAR does not enumerate violations of specific statutes that constitute the underlying predicate crimes. Nevertheless, under Michigan law, an individual commits first-degree murder in any of the following three ways: (i) “[m]urder perpetrated by means of poison, lying in wait, or any other willful, deliberate, and premediated killing”; (ii) “[m]urder committed in the perpetration of, or attempt to perpetrate, ” certain felonies, including arson, criminal sexual conduct, kidnapping, or torture (i.e., felony murder); and (iii) “murder of a peace officer or a corrections officer . . . knowing that the peace officer or corrections officer is a peace officer or corrections officer engaged in the performance of his or her duty as a peace officer or corrections officer.” Mich. Comp. Laws §§ 750.316(1)(a)-(c).

         Wilson has been charged in the second superseding indictment with two counts of murder in aid of racketeering under VICAR by allegedly committing two murders in violation of Michigan Compiled Laws §§ 750.316(1) and 767.39[7] for the purpose of maintaining or increasing his position in 6 Mile Chedda Grove. See 2d Superseding Indictment at 28-29, 30 (Count Eight pertains to victim A.T., while Count Ten pertains to victim S.H.). These counts do not indicate which part of § 750.316(1) Wilson is alleged to have violated.

         By not specifying which of the three distinct types of murder under § 750.316(1) applies to him, Wilson argues that the two counts of murder in aid of racketeering must be dismissed because they fail to provide him adequate notice of the specific predicate crime he is facing, thereby violating his due process rights. Def. Mot. at 4 (Dkt. 634). Although he recognizes that § 750.316(1)(c), which concerns the murder of a peace officer or a corrections officer, is likely not applicable here, Wilson claims that he lacks notice of whether he must defend against premeditated murder or felony murder. Id. at 4-5. Wilson further argues that these counts must be dismissed because they do not include a mental state element and, therefore, fail to track the state statutory language. Def. Mot. at 5 (Dkt. 629). For example, if Wilson allegedly murdered A.T. and S.H. in violation of § 750.316(1)(a), the indictment fails to allege an essential element, e.g., the mental state of willfulness, deliberation, and premeditation. Id. at 5-6.

         In response, the Government contends that all of the essential elements for a murder-in-aid-of-racketeering charge have been alleged in the second superseding indictment, but that it is not required to allege the elements of the underlying state-law offense. See Gov't Resp. at 4-5 (Dkt. 698) (citing United States v. Orena, 32 F.3d 704, 714 (2d Cir. 1994)). Consequently, the mental state element for VICAR is the “purpose element, ” not the mental state required to prove the underlying state-law offense, as Wilson claims. Id. at 4. Nevertheless, the Government recognizes it must still prove that the crime of violence violated all of the elements of the predicate state-law offense beyond a reasonable doubt at trial, and that the jury must be instructed on those elements as well. Id. at 5 (citing United States v. Carrillo, 229 F.3d 177, 183 (2d Cir. 2000)).[8] The Court agrees with the Government.

         It is well known that an indictment is insufficient unless “it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87, 117 (1974); see also United States v. Schaffer, 586 F.3d 414, 422 (6th Cir. 2009) (“[T]he indictment must: (1) ‘set out all of the elements of the charged offense and must give notice to the defendant of the charges he faces,' and (2) ‘be sufficiently specific to enable the defendant to plead double jeopardy in a subsequent proceeding, if charged with the same crime based on the same facts.'” (quoting United States v. Douglas, 398 F.3d 407, 411 (6th Cir. 2005))). Wilson is charged in Counts Eight and Ten of the second superseding indictment with murder in aid of racketeering in violation of VICAR. Thus, the second superseding indictment must allege the essential elements of the VICAR offense.

         To establish a VICAR offense, the Government must prove beyond a reasonable doubt that (i) the organization was a RICO enterprise; (ii) the enterprise was engaged in racketeering activity; (iii) the defendant committed the alleged crime of violence in violation of either federal or state law; and (iv) an animating purpose of the defendant's action was to gain entrance to, or maintain or increase his position in, the enterprise. See United States v. Odum, 878 F.3d 508, 516 (6th Cir. 2017), vacated on other grounds, Frazier v. United States, 139 S.Ct. 319 (2018); see also United States v. Hackett, 762 F.3d 493, 500 (6th Cir. 2014) (VICAR's purpose element is satisfied if “an ‘animating purpose' of the defendant's action was to maintain or increase his position in the racketeering enterprise”; it need not be the defendant's sole or primary purpose for acting). When it comes to the offense of murder in aid of racketeering in particular, the Government must prove: “(i) the murder of a person; (ii) for the purpose of gaining entrance to or maintaining or increasing position; (iii) in an enterprise engaged in racketeering activity.” United States v. Wilson, 579 Fed.Appx. 338, 342-343 (6th Cir. 2014). Courts have held that the “purpose” or “motive” element of VICAR can be satisfied if “the jury could properly infer that the defendant committed his violent crime because he knew it was expected of him by reason of his membership in the enterprise or that he committed it in furtherance of that membership, ” as well as “to protect the enterprise's racketeering activities.” United States v. Norwood, No. 12-CR-20287, 2015 WL 2250493, at *8 (E.D. Mich. May 13, 2015) (citations omitted).

         The Court finds that the allegations of murder in aid of racketeering in Counts Eight and Ten are adequate, as the second superseding indictment tracks the statutory language of VICAR and sufficiently sets forth the essential elements that offense. See 2d Superseding Indictment at 28-29, 30. Consequently, the second superseding indictment provides Wilson with fair notice of the VICAR offense he will be facing at trial. The indictment is also sufficiently specific in regard to the particular dates and surrounding circumstances of the murders as to provide Wilson protection against double jeopardy in the event a murder-in-aid-of-racketeering charge in brought in the future based on the same facts. This is all that is required of the Government for purposes of the indictment. See, e.g., United States v. Toliver, 380 Fed.Appx. 570, 572 (9th Cir. 2010) (“[T]he district court correctly denied [the defendant's] motion to dismiss the indictment” when the “indictment set forth all the essential elements of a VICAR ‘status crime.'”); Carrillo, 229 F.3d at 183 (“[O]nly a generic definition of an underlying state crime is required in a RICO indictment, as distinguished from the elements of the penal codes of the various states where acts of racketeering occurred.”); Orena, 32 F.3d at 714 (the Government is not required to allege in the indictment an overt act as required under the predicate state-law murder violations); accord United States v. Kuehne, 547 F.3d 667, 696 (6th Cir. 2008) (holding that the failure of the indictment to specify particular predicate drug trafficking offenses for the imposition of 18 U.S.C. § 924(c)(1) did not undermine the indictment's sufficiency because the indictment tracked the statutory language of § 924(c)(1) and was sufficiently specific to protect against double jeopardy).

         Although Wilson demands that an indictment alleging a violation of VICAR must also allege the elements required to prove the underlying state-law predicate offense, this is not necessary. See United States v. Fernandez, 388 F.3d 1199, 1219-1220 (9th Cir. 2009) (holding that an indictment charging a VICAR violation was sufficient when it alleged the four elements of a VICAR violation, and rejecting the defendants' argument that the indictment was insufficient because it did not adequately allege motive or intent relative to underlying state-law offense); United States v. Weaver, No. 2:09-cr-00222, 2010 WL 1633319, at *3 (S.D. W.Va. April 20, 2010) (“Under VICAR, the Government must prove as an element that the defendant committed the underlying crime of violence. Proving this element would entail proving the elements of the predicate offense at trial, but the elements of the predicate crime are not themselves elements of VICAR. Thus, they need not be included in the indictment.” (citation omitted)); see also United States v. Barbeito, No. 2:09-cr-00222, 2010 WL 2243878, at *7 (S.D. W.Va. June 3, 2010) (“[T]he elements of the state-law predicate are not elements of a RICO offense per se, so they need not be included in the indictment.” (citing Orena, 32 F.3d at 714)); United States v. Garcia, No. 11-cr-68, 2012 WL 6623984, at *8 (D. Idaho Dec. 19, 2012) (denying motion to dismiss and rejecting the defendant's argument that the indictment must allege each element of the state-law violent crime, including “the requisite mens rea” for murder, where the indictment alleged all essential elements of a VICAR status crime); accord United States v. Palfrey, 499 F.Supp.2d 34, ...


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